United States patents protect new and useful processes, machines, articles of manufacture, and compositions of matter. It is often the only way to legally protect a new functional product against copying by competitors.
A U.S. patent gives its owner the "exclusive" right to make, use, offer to sell, or sell the patented invention within the United States, or import the patented invention into the United States, (hereinafter collectively referred to as just "make and sell"). If somebody other than the owner infringes a valid patent by making or selling the claimed invention of patent without permission from the owner(s), then the owner(s) can sue the infringing party in U.S. federal court. If successful a patent owner will be entitled to an award of money, not less than a reasonable royalty, for any infringement that happened after notice was given in compliance with the patent marking and notice statute. The patent owner may also be able to obtain a court order against further infringement.
A U.S. patent is not a grant of permission to the owner to make and sell the claimed invention. Rather it is simply the right to exclude, or stop, others from making and selling the invention. This is important to understand, because it means you can own patent rights in an invention, but still not be allowed to make and sell the invention, if to do so would be a violation of somebody else’s patent rights, or otherwise be breaking the law.
The only way to get a U.S. patent is to file an application with the United States Patent & Trademark Office, which is an agency of the U.S. government.
Under United States law it is the inventor(s) who initially owns the right to file an application for, and receive, a U.S. patent. The inventor(s) can assign their rights to file a patent application and receive a patent to someone else, such as their employer.
If there is more than one inventor (in other words there are co-inventors), then each co-inventor is a joint owner of the patent. In the absence of any agreement to the contrary, each of the joint owners of a patent may make and sell the invention, without the consent of and without accounting to the other owners. For this reason, there should be a written agreement between co-inventors as to ownership and control of the invention.
There are three basic types of U.S. patents:
- Design Patent
A design patent protects the new, original and ornamental design of an article of manufacture. The ornamental design of an article is its visual appearance, such as the unique shape of a bottle. Note that only “ornamental” designs are protected. This means that the design being protected cannot be dictated by the functional aspects of the article. A design patent provides protection for fifteen (15) years from the date it issues.
- Plant Patent
Certain types of plants that have been asexually reproduced are eligible for plant patent protection. A plant that is asexually reproduced is one that is reproduced by means other than seeds, such as by the rooting of cuttings, layering, budding, grafting, inarching etc… Other types of plants that do not qualify for plant patent protection may be eligible for protection under another set of laws called the Plant Variety Protection Act, or possibly through a utility patent. A plant patent provides protection from the date the patent issues until a date twenty (20) years after the patent application was filed, assuming all of the required maintenance fees are paid.
- Utility Patent
If an invention eligible for patent protection is not just the ornamental design of an article of manufacture, or an asexually reproduced plant, then it will be protected by a utility patent. Utility patents cover numerous types of inventions. Everything from simple mechanical devices like a paper clip, to the most complex electrical circuits found in today’s supercomputers, to the chemical formulas of prescription drugs, to biotechnology patents on genetically engineered animals. The utility patent is by far the most common type of patent. A utility patent provides protection from the date the patent issues until a date twenty (20) years after the patent application was filed, assuming all of the required maintenance fees are paid.
While an inventor is not required to use the services of a registered patent attorney or agent when applying for a U.S. patent, due to the complexity of the patent laws and regulations it is generally highly recommended to do so. Note, a person must be a registered patent attorney or agent in order to represent an inventor before the United States Patent and Trademark Office.
While there are exceptions, it often costs at least several thousand dollars, and takes at least a year to obtain the issuance of a U.S. patent. This expense is generally made up of Patent Office filing and issuance fees, patent drawing expenses, and patent attorney expenses. Exactly how much it costs depends upon the particular invention, the area of technology, and the type of patent being sought.
A U.S. patent is only good in the United States. Each country has its own laws for granting patent protection. If you want exclusive rights in other countries to make and sell an invention, then you will need to separately seek patent protection in such countries. While there are treaties between countries to facilitate this, it can be very expensive, and there are strict time limits for doing so.